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September 3, 1997

 

 

Mr. Douglas E. Gerhardt
Director of Governmental Relations
School Administrators Association of
New York State
8 Airport Boulevard
Latham, NY 12110

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Gerhardt:

As you are aware, I have received your letter of July 22, which reached this office on July 28.
Please accept my apologies for the delay in response.

You referred initially to the School Administrators Association of New York State
(SAANYS), an organization consisting of administrators and supervisors employed by public schools.
You wrote that those professionals, who are typically school principals or administrators:

"commonly meet with students on a wide variety of issues.
Frequently, these meetings are used as forums to discuss issues a
student or students are facing. These may relate to a class, program,
teacher or another student. Quite often, other students, administrators
and/or teachers attend these meetings. Occasionally, notes are taken
by a member of the staff."

You have asked whether, in my view, "if an administrator meets with a student or group of students,
with other professional staff present, the meeting is deemed public for purposes of the open meetings
law." You also asked whether if notes taken at the kind of meeting described above are subject to
the Freedom of Information Law, particularly if they include comments made by children.

In this regard, I offer the following comments.

First, as you described the meetings at issue, they would fall outside the coverage of the Open
Meetings Law. That statute pertains to meetings of public bodies, and the phrase "public body" is
defined to mean:

"...any entity for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body" [see
§102(1)].

Based on the foregoing, the gatherings in question would not consist of members of any particular
public body, such as a board of education. Therefore, again, the Open Meetings Law would not
apply.

Second, I believe that the Freedom of Information Law would be applicable. That statute
pertains to agency records and defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

The Court of Appeals, the State's highest court, has construed the definition as broadly as its
specific language suggests. The first such decision that dealt squarely with the scope of the term
"record" involved documents pertaining to a lottery sponsored by a fire department. Although the
agency contended that the documents did not pertain to the performance of its official duties, i.e.,
fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a
"governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v.
Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to
rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw, but
in perception, if not in actuality, there is bound to be considerable
crossover between governmental and nongovernmental activities,
especially where both are carried on by the same person or persons"
(id.).

In another decision rendered by the Court of Appeals, the Court focused on an agency claim
that it could "engage in unilateral prescreening of those documents which it deems to be outside of
the scope of FOIL" and found that such activity "would be inconsistent with the process set forth in
the statute" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute -
could be used by an uncooperative and obdurate public official or
agency to block an entirely legitimate request. There would be no
way to prevent a custodian of records from removing a public record
from FOIL's reach by simply labeling it 'purely private.' Such a
construction, which would thwart the entire objective of FOIL by
creating an easy means of avoiding compliance, should be rejected"
(id., 254).

Further, in a case involving notes taken by the Secretary to the Board of Regents that he
characterized as "personal" in conjunction with a contention that he took notes in part "as a private
person making personal notes of observations...in the course of" meetings. In that decision, the court
cited the definition of "record" and determined that the notes did not consist of personal property but
rather were records subject to rights conferred by the Freedom of Information Law [Warder v. Board
of Regents, 410 NYS 2d 742, 743 (1978)].

Also pertinent is the Family Education Rights and Privacy Act (20 U.S.C. §1232g), which is
commonly known as "FERPA". In brief, FERPA applies to all educational agencies or institutions
that participate in funding, loan or grant programs administered by the United States Department of
Education. As such, FERPA includes within its scope virtually all public educational institutions and
many private educational institutions. The focal point of the Act is the protection of privacy of
students. It provides, in general, that any "education record," a term that is broadly defined, that is
personally identifiable to a particular student or students is confidential, unless the parents of students
under the age of eighteen waive their right to confidentiality, or unless a student eighteen years or
over similarly waives his or her right to confidentiality. The federal regulations promulgated under
FERPA define the phrase "personally identifiable information" to include:

"(a) The student's name;
(b) The name of the student's parents or
other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social
security number or student number;
(e) A list of personal characteristics that would make the
student's identity easily traceable; or
(f) Other information that would make the student's
identity easily traceable" (34 CFR Section 99.3).
Based upon the foregoing, references to students' names or other aspects of records that would make
a student's identity easily traceable must in my view be withheld from the public in order to comply
with federal law. Concurrently, if a parent of student requests records pertaining to his or her child,
the parent ordinarily will have rights of access to those portions of records that are personally
identifiable to their children.

I point out that the federal regulations exclude from the definition of "education records" :

"Records of instructional, supervisory, and administrative personnel
and educational personnel ancillary to those persons that are kept in
the sole possession of the maker of the record, and are not accessible
or revealed to any other person except a temporary substitute for the
maker of the record..." [34 CFR 99.3(b)(1)].

Therefore, if, for example, a principal prepares notes of a meeting and does not share or disclose the
notes to any other person, FERPA would not apply. In that scenario, even though FERPA would
not apply to the notes, due to the breadth of the definition of "record" in the Freedom of Information
Law, the notes would fall within the scope of that statute. In brief, the Freedom of Information Law
is based upon a presumption of access. Stated differently, all records of an agency are available,
except to the extent that records or portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law.

Assuming that the Freedom of Information Law governs rights of access rather than FERPA,
two of the grounds for denial would likely be pertinent to an analysis of rights of access to notes or
similar records. Section 87(2)(b) permits an agency to withhold records insofar as disclosure would
constitute "an unwarranted invasion of personal privacy." If, for instance, a parent requests notes and
the notes include reference to several students, I believe that a school district could withhold those
portions pertaining to the students other than the child or children of the person making the request
in order to protect privacy.

The other provision of significance is §87(2)(g), which permits an agency to withhold records
that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or determinations
or external audits must be made available, unless a different ground for denial could appropriately be
asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective
of opinion, advice, recommendation and the like could in my view be withheld.

If notes taken at a meeting merely consist of a factual rendition of what was said or what
transpired, they would consist of factual information available under §87(2)(g)(i), except to the extent
that a different ground for denial could be asserted [i.e., §87(2)(b) concerning the protection of
privacy]. Insofar as notes might include expressions of opinion, or conjecture on the part of the
author, they would fall within the scope of the exception.

I hope that I have been of assistance. Should any further questions arise, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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